Fenton Settlement and Release
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Transcript of Fenton Settlement and Release
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8/10/2019 Fenton Settlement and Release
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SETTLEMENT GREEMENT ND RELE SE
This Settlement Agreement and Release ( Agreement ) is entered into between the
City o Carmel-by-the-Sea ( City ) and Leslie Fenton (Fenton ) with respect to the following
facts.
WHEREAS, Fenton began her employment with City
in
1995. Prior to her termination
on March 26, 2014, Fenton was employed by City
in
numerous capacities
in
the departments
o Administration , Fire and Planning and Building, including Administrative Coordinator at the
Fire Department, Finance Specialist/Coordinator in Planning and Administrative Services
Departments, Emergency Operations Center Dispatch and Training, and assistance with
Community Activities. She also served as Administrative Coordinator for the Planning
Commission .
WHEREAS, Fenton raised claims
o
wrongful termination and violation of due process
o law, discrimination, harassment, retaliation , defamation, deprivation of her property
interest, and breach of contract, among others, with City relating to her employment with the
City and her termination (hereinafter Claims );
WHEREAS, City and Fenton both now desire to compromise and settle the
aforementioned Claims and all claims, demands, complaints, actions, charges, litigation, and
causes of action, whether now known or unknown, that arise from the facts alleged in the
Claims or arising from Fenton's Claims against City or any of its members of the City Council ,
officers, agents, deputies, representatives, servants, employees, successors , assigns,
predecessors, divisions, branches, or attorneys (collectively The Releasees );
WHEREAS, the parties hereto acknowledge and agree that neither this Agreement nor
the act o entering into it constitute
an
admission, stipulation or concession of liability, express
or implied, on the part o any party concerning any fact or matter
in
any way connected with
the subject matter of this Agreement. Fenton acknowledges City is providing her with the
consideration mentioned herein for economic considerations in order to resolve all matters
related to her prior employment and termination which could
be
the basis of a claim or cause
o action or verdict or judgment based
on
alleged events occurring before the effective date of
this Agreement by avoiding the costs of litigation and trial.
NOW, THEREFORE, in consideration o the mutual covenants set forth below, the
parties agree as follows:
1 All of the recitals listed above are material provisions o this Agreement.
Page 1
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2. In return for the consideration discussed in th is Agreement, Fenton, and on
behalf o her heirs, successors, and assigns, on the one hand; and City, its successors,
assigns, employees, officers, and directors,
on
the other hand; agree to forever release and
discharge each other and each other's predecessors, successors, employees, officers,
directors, and anyone else acting
on
behalf of such Releasees from any and all claims,
charges, liabilities, liens, damages and causes of action, obligations, and duties, known or
unknown, which the non-releasing party may have, or may claim to have, against any o the
Releasees arising out o or, in any way related to Fenton 's employment with City or any o the
Releasees, including any contractual or employment relationship or involvement, save and
except for the obligations stated
in
this Agreement. This Agreement specifically extends to
without limitation, claims or causes of action for defamation , deprivation o property interest,
violation o due process, discrimination, harassment, retaliation, breach of contract, wrongful
termination, breach o an express or implied contract, breach of the covenant of good faith
and fair dealing, breach o fiduciary duty or any other duty, fraud , misrepresentation,
interference with a contractual or other business relationship , infliction of emotional distress,
discrimination, harassment, disability, loss o future or past earnings, whistleblower-related
claims, and claims brought under the California State Constitution , the United Sates
Constitution, or applicable state and federal fair employment statutes and regulations,
including but not limited to: the Civil Rights Act o 1964, as amended; the Fair Labor
Standards Act, as amended; the Worker Retraining and Notification Act
o
1988,
as
amended; the Americans with Disabilities Act of 1990, as amended; the Rehabilitation Act of
1973, as amended; the Employee Retirement Income Security Act of 1974, as amended; the
Age Discrimination in Employment Act, as amended; and the California Fair Employment and
Housing Act, as amended. Nothing in this Agreement shall affect the U.S. Equal
Employment Opportunity Commission's (hereinafter EEOC ) rights and responsibilities to
enforce the Civil Rights Act o 1964, as amended; the Age Discrimination Employment Act of
1967, as amended; or any other applicable law, nor shall anything in this Agreement
be
construed as a basis for interfering with Fenton's protected right to file a charge with , or
participate in an investigation or proceeding conducted by, the EEOC, or any other state,
federal or local government entity; provided, however, if the EEOC or any other state , federal
or local government entity commences an investigation on Fenton's behalf, Fenton
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specifically waives and releases her right ,
i
any, to recover any monetary or other benefits or
relief o any sort whatsoever arising from any such investigation.
Fenton further agrees that upon the effective date of this Agreement she will
notify the California Department o Fair Employment and Housing (hereinafter DFEH ) and
EEOC that she has settled all Claims against City, and request DFEH and EEOC to dismiss
or rescind her DFEH and EEOC claim or claims with prejudice.
3
City shall reinstate Fenton to a permanent, full-time position as Executive
Assistant, Step Five with all benefits applicable to that position. Except as provided in the
Agreement, i Fenton's position is eliminated or i Fenton is terminated without cause by the
City while still willing and able to perform the duties of Executive Assistant, City agrees to
provide Fenton with thirty (30) days ' notice and to pay Fenton a cash payment equal to three
months o the then-current, aggregate salary. Said cash payments shall be paid through
payroll on the regular pay period intervals until exhausted. Fenton shall also be entitled to
assume any vacant position for which she
is
qualified in City employment
on
the date of
termination or any such position
in
City employment that becomes vacant within one year of
the date of termination. If Fenton is re-employed by the City within three months of the date of
termination, the City's obligation to pay severance pay shall cease
on
the date of Fenton's
reemployment.
In
the event Fenton is terminated because of her conviction o any felony, or
any crime involving moral turpitude, or any offense involving violation of her official duties or if
the City Administrator determines that she has misappropriated public funds, comingled
public funds with her personal funds , engaged in willful corrupt conduct in office, or
conducted herself in a manner to be determined as willful conduct that constitutes
misconduct according to the City's Personnel Rules, the City shall have no obligation to
continue employment of Fenton, to pay severance, or offer any position, open or otherwise,
as set forth
in
this paragraph. If Fenton is accused of such conduct she shall be entitled to a
hearing in accordance with the City's Personnel Rules to determine i cause exists for her
termination. Back pay and full benefits except for medical coverage, which is limited to 90-
day coverage prior to reinstatement, including but not limited to PERS credits , which shall be
reinstated at the 2% at 55 years o age, union retirement(s), deferred compensation,
longevity pay, salary base at no less than Fenton was receiving
on
March 27, 2014, vacation
and sick leave accrual, and holiday pay and General Leave Day pay for all applicable dates,
will be provided by City to Fenton for the period o March 27, 2014 through December 31 ,
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8/10/2019 Fenton Settlement and Release
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2014, subject to all applicable federal , state and local withholding taxes and deductions.
Fenton shall notify the City within 30 days of executing this agreement of her election to
receive CaiPERS credits from the City for the period of her employment by another public
entity. March 27, 2014, shall
be
Fenton's official reinstatement date, and she shall report to
work February
1
2015. Fenton shall receive
NO
salary or benefits for the month
of
January
2015. It is the intent
of
the parties that Fenton
be
reinstated with City at no loss of pay or
benefits except for the 90-day retroactive medical insurance coverage as set forth
in
this
paragraph.
No later than January
15
2015, City also shall pay directly to Fenton's private
attorney, Michelle Welsh ,
of
Stoner, Welsh and Schmidt, as a lump-sum payment not to
exceed 15,000, for all attorney's fees and costs in connection with the aforementioned
Claims to date of reinstatement with City. City shall also pay directly to UPEC Local 792 for
all costs, not to exceed 10,000,
in
connection with the aforementioned Claims to date of
reinstatement with City. In a good faith
ffort
to resolve all claims and in recognition
of
the
City's sincere efforts to make Fenton whole UPEC Local 792 agrees to waive attorney's fees.
City
is not providing any tax or legal advice, and the City makes no
representations regarding tax obligations or consequences, if any, related to the payments or
the Agreement. f any claim
is
asserted against the City by any taxing authority with respect
to this sum, Fenton agrees to hold City harmless, and to defend and indemnify City and the
Releasees from any cost, loss, liability, expense, penalty, or attorneys' fees arising from the
payments set forth above.
4. Fenton releases City and all of the Releasees from any and all complaints,
charges
of
discrimination or harassment, or related complaints or charges, requests for
information or grievances that are based on facts relating to Fenton's employment that
occurred up to the date she executes this Agreement. Fenton agrees to withdraw or to
dismiss, wi
th
prejudice, any other complaint, claim, lawsuit, request for information or
grievance that she has filed against City or any
of
the Releasees that are based upon facts
that occurred up to the date she executes this Agreement. This Agreement extends to any
such complaint, claim, request for information, lawsuit, grievance, or charge filed in any state
or federal court, with any administrative body, agency, board, commission or entity
whatsoever, relating to her employment or employment relationship with City.
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settle all Claims and hereby agrees to accept and assume the risk that any fact with respect
to any matter
in
this Agreement may hereafter be found to be other than or different from the
facts City believed at the time of this Agreement to
be
true, and agrees that this Agreement
shall
be
and will remain effective notwithstanding any such differences
in
fact.
8
Fenton hereby represents and warrants that she has
had
adequate information
concerning the Claims to make
an
informed decision and has, independently, and without
reliance
on
City, and based upon such information that she has deemed appropriate , made
her own analysis and decisions to enter into this Agreement.
9
City hereby represents and warrants that City has
had
adequate information
concerning the Claims to make
an
informed decision and has, independently, and without
reliance on Fenton, and based upon such information that they deemed appropriate, made
their own analysis and decisions to enter into this Agreement.
10. Fenton understands and expressly agrees that this Agreement shall bind and
benefit any spouse, domestic partner, heirs, agents, attorneys, representatives, and assigns.
11
. City understands and expressly agrees that this Agreement shall bind
and
benefit its past and present officials, officers, agents, and employees.
12
. Except as provided herein, each party bears
its
own costs and attorneys fees
in
relation to all expenditures made in regard to Claims being settled herein.
13 This Agreement shall supersede and render null and void any and all prior
agreements between the parties hereto, concerning the subject matter hereof, excepting
therefrom a Memorandum
of Understanding between City and a labor union, regarding
Fenton s position if it is brought within the Bargaining Unit during her employment, as well as
Constitutional property right protections in her position.
f
Fenton s position is brought into a
collective bargaining unit covered by a Memorandum of Agreement between the City and a
labor union, then the severance and rehire to open position provisions of Section Three shall
be null and void unless and until said position is removed from the unit or the unit no longer is
represented by a labor union .
14. Fenton represents that she has had a full opportunity to discuss the terms of
this Agreement with representatives of her own choosing, including J Ocean Mottley, Staff
Attorney for the United
Public Employees of California (UPEC) Local 792, and her attorney,
Michelle Welsh, of Stoner, Welsh and Schmidt, and that she has carefully read and fully
understands all of the provisions of this Agreement. Fenton represents that she is voluntarily
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City of Carmel-by-the-Sea
i')
Cu,Lj { t V \ ~
Leslie Fenton
APPROVED AS TO FORM AND CONTENT:
Donald G. Freeman, City Attorney
City
of
Carmel-by-the-Sea
J { / ~
Michelle Welsh
Stoner. Welsh and Schmidt
Attorney for Leslie Fenton
.
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J: ()(;ean Mottley ..
'
staff At;torney
UPEC Lecal 792
' .
__
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Date
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